Ninth Circuit Court Of Appeals Might Review "Heightened Scrutiny" Ruling

In late January, a three-judge panel of the Ninth Circuit Court of Appeals invoked "heightened scrutiny" in its ruling that a gay juror had been improperly booted off the jury in a price-fixing lawsuit between two HIV pharma giants. As no federal court had previously applied heightened scrutiny to cases involving LGBT people, the establishment of that precedent has been widely hailed as a major setback for the enemies of civil equality.

In fact, just a couple of days after that ruling, Nevada Attorney General Catherine Masto withdrew her defense of that state's marriage ban, saying that in light of the Ninth Circuit's application of heightened scrutiny in the gay juror case, she could see no chance of  winning in the same court. The deadline to file an en banc appeal of the three-judge ruling to the full Ninth Circuit passed at the beginning of this month, with the losing side in the gay juror case saying, "AbbVie recognizes that the implications of the Court’s findings extend far beyond the underlying case. For that reason, we chose not to appeal."

So that's that, right? Actually, maybe not. Va SCOTUSblog:

A federal appeals court ruling that had appeared to make it harder for states to justify a ban on same-sex marriage, by raising the constitutional barrier to laws based on sexual orientation, may now be given a new look. The U.S. Court of Appeals for the Ninth Circuit disclosed Thursday that one or more of its judges have sought to review the issue further, so the court called for new legal briefs. This development in the Ninth Circuit case of SmithKline Beecham Corp. v. Abbott Laboratories (Circuit docket 11-17357) could be significant as federal appeals courts soon move into into several hearings on same-sex marriage. A common issue in those cases will be how tough a constitutional test a ban on such marriages must satisfy. [snip]

Now, at least one judge of the full Ninth Circuit has called for a vote on en banc review. That will be taken after the two sides in the case file the new briefs, which are due three weeks from today. If en banc review is set, that could mean that the hearing in the Nevada same-sex marriage case — on a date not yet set — would go forward with the state able to argue for the continued application of a lesser legal standard (“rational basis”), since that was the test established in the Ninth Circuit prior to the SmithKline ruling. The lawyers for the same-sex couples’ case could, of course, make the argument that the “heightened scrutiny” standard should be applied in their case anyway, relying — as the panel did — on the Supreme Court’s Windsor opinion.

Now we stand by to see what Catherine Masto does. (Tipped by JMG reader Matthew)

NEVADA: Ninth Circuit Grants Lambda Legal's Request For Expedited Hearing

Two days after Nevada Attorney General Katherine Masto withdrew her defense against Lambda Legal's marriage equality lawsuit, the Ninth Circuit Court has granted Lambda's request for an expedited hearing. Via press release:

Lambda Legal Senior Attorney Tara Borelli issued the following statement: "The fact that the government defendants no longer are defending Nevada's exclusion of same-sex couples from marriage makes any delay in these loving and committed couples securing the relief they seek particularly intolerable. The wheels of justice are now on a much faster track." Gov. Sandoval's request and the earlier decision by Carson City Clerk-Recorder Alan Glover to withdraw his brief were motivated by the Ninth Circuit's recent ruling in SmithKline Beecham v. Abbott Laboratories that discriminatory classifications based upon sexual orientation must receive heightened scrutiny and should be presumed unconstitutional. The heightened scrutiny standard is much tougher to meet and rendered the state of Nevada's arguments in its original brief defending the marriage ban "no longer tenable in the Ninth Circuit," as Nevada's Attorney General conceded in a statement released last week. The withdrawal of the two government defendants leaves only the Coalition for the Protection of Marriage, which the U.S. District Court had allowed to intervene, defending the marriage ban.

Zoom, zoom, zoom!

Brian Brown Has The Nevada Sadz

"This is an erroneous and shameful decision — it's that simple. In addition to showing very poor legal reasoning, this move reveals cowardice and an embarrassing lack of integrity on the part of Governor Sandoval and Attorney General Masto. Rather than stand up for state voters who overwhelmingly adopted Nevada's marriage amendment against the bullying lobby trying to push marriage redefinition through the courts, Sandoval and Masto have turned their backs on the voters and betrayed their own sworn oaths of office. In the end, this is simply an act of cowardice, with these officials bending to the false narrative of 'inevitability' projected by the radicals determined to impose marriage redefinition nationwide." - Hate group leader Brian Brown, who is very upset that Nevada AG Catherine Masto has withdrawn her defense of the same-sex marriage ban.

BREAKING: Nevada AG Catherine Masto Withdraws Defense Of Gay Marriage Ban

Nevada Attorney General Catherine Masto has filed a motion with the Ninth Circuit Court of Appeals, withdrawing her defense of the marriage equality lawsuit against the state.

Republican Gov. Brian Sandoval says he agrees with the move, saying it’s clear the state’s arguments supporting the ban are no longer defensible in court. The decision means Nevada will not argue to uphold the state’s constitutional prohibition against same-sex marriage that voters passed in 2002. Eight same sex couple sued the state, arguing the law is unconstitutional. Nevada lawmakers last year took the first step toward repealing that law. If legislators approve Senate Joint Resolution 13 again next year, it would go to voters on the 2016 ballot.

Masto's move comes due to last month's ruling by the Ninth Circuit Court, which applied "heightened scrutiny" in an unrelated lawsuit about a gay man who was summarily dismissed from a jury because of his sexual orientation. At the time, Lambda Legal promised that the ruling would be a "game changer" for other LGBT-related federal lawsuits.

UPDATE: Lamda Legal reacts via press release.

“In the wake of the Ninth Circuit ruling in SmithKline Beecham v. Abbott Laboratories, the Governor has recognized that the writing is on the wall, and that arguments seeking to perpetuate discrimination are becoming extremely difficult to justify. Denying marriage to same-sex couples serves no legitimate state interest and is intended solely to perpetuate discrimination. As the Governor himself recognized, the heightened scrutiny standard that the Ninth Circuit’s SmithKline ruling now requires be applied to discriminatory classifications based on sexual orientation renders arguments supporting the marriage ban no longer tenable, and the Governor frankly made the only call he could.”

In Sevcik v. Sandoval, Lambda Legal, joined by pro bono co-counsel from O’Melveny & Myers LLP and Snell & Wilmer LLP, represents eight same-sex couples challenging Nevada’s law banning marriage for same-sex couples. The lawsuit argues that barring same-sex couples from marriage violates the Due Process and Equal Protection Clauses of the U.S. Constitution. A U.S. District Court judge granted Nevada Gov. Brian Sandoval’s motion to dismiss the lawsuit in November 2012, and Lambda Legal appealed the decision to the Ninth Circuit. The State submitted its brief supporting the marriage ban to the Ninth Circuit on the same day as the Court’s ruling in SmithKline.

So what happens next? Zoom, zoom, zoom?

Lambda Legal: Heightened Scrutiny Will Be A Game-Changer For Nevada

Via press release from Lambda Legal:

Nevada Attorney General Catherine Cortez Masto late yesterday issued a statement declaring that her office was reconsidering the State's arguments in Lambda Legal's lawsuit challenging Nevada's discriminatory marriage ban, Sevcik v. Sandoval, in light of the recent U.S. Ninth Circuit Court of Appeals ruling in GlaxoSmithKline v. Abbott Laboratories. Lambda Legal Senior Attorney Tara Borelli issued the following statement:

"While we are confident that Nevada's discriminatory marriage ban would be found unconstitutional under any level of scrutiny, it is even clearer after the GlaxoSmithKline v. Abbott Laboratories decision. The Ninth Circuit ruling in the GlaxoSmithKline case is a game-changer and cannot help but compel reconsideration of all arguments supporting discriminatory marriage bans such as Nevada's.

"We have long argued that discriminatory classifications based upon sexual orientation must at least meet the same standard of review as those based upon sex - they should be presumed to be unconstitutional. In the GlaxoSmithKline decision the Ninth Circuit has agreed, ruling that heightened judicial scrutiny must be applied to such discriminatory classifications. We are glad the Nevada Attorney General is reconsidering the issue."

RELATED: Last spring both chambers of the Nevada state legislature repealed the constitutional ban on same-sex marriage. That would have to happen again in the 2015 session before it could be placed on a public ballot in November 2016.

NEVADA: AG Reconsidering Marriage Defense After Heightened Scrutiny Ruling

Two days ago Democratic Nevada Attorney General Catherine Masto earned widespread criticism when she filed a defense brief that compared same-sex marriage to incest and bigamy. Last night Masto declared that she is reconsidering that brief in light of the Ninth Circuit Court's application of heightened scrutiny in an unrelated ruling that gays cannot be peremptorily booted off of juries. Here is her statement:

“A potentially significant case was decided by the Ninth Circuit on Tuesday of this week, the same day that a brief was filed on behalf of the State in Nevada’s same-sex marriage case. The Ninth Circuit’s new decision, entitled SmithKline Beechum Corp. v. Abbott Laboratories, appears to impact the equal protection and due process arguments made on behalf of the State. After careful review of the SmithKline decision these arguments are likely no longer tenable in the Ninth Circuit. This office will conduct further review over the weekend in order to evaluate the State’s argument in light of SmithKline. We will be discussing this with the Governor’s Office next week.”

Could it be that Masto will drop her defense entirely?

NEVADA: Dem AG Files Brief Comparing Same-Sex Marriage To Incest & Bigamy

Democratic Nevada Attorney General Catherine Masto has filed a brief to the Ninth Circuit Court of Appeals in which she compares same-sex marriage to bigamy and incest. Chris Johnson writes at the Washington Blade:

Evan Wolfson, president of Freedom to Marry, took Masto to task for making an implicit comparison between same-sex marriage and bigamy or incest while saying she makes no solid argument against allowing gay nuptials in Nevada. “Marriage is not ‘defined’ by who is denied it, and nothing in the brief explains why loving and committed couples of the same sex should be denied the legal commitment and bundle of obligations and protections that are available to different-sex couples,” Wolfson said. “To invoke bigamy and incest, as the attorney general does — at least she stopped short of bestiality! — doesn’t supply an explanation; it makes clear that the state has nothing to offer to justify the discrimination against same-sex couples in Nevada. But Wolfson said he concurs with another argument within the attorney general’s brief: domestic partnerships, which are permitted under Nevada law, aren’t equivalent to and don’t provide a substitute for marriage.

The brief was filed in Lambda Legal's Sevcik v. Sandoval, the hopes for which got much brighter earlier this week when the Ninth Circuit Court invoked heightened scrutiny in a ruling that barred the peremptory dismissal of gay jurors. Masto's brief urges that the Court not consider heightened scrutiny in Lambda Legal's case.

GetEQUAL Nevada organizer Derek Washington has issued a response to Masto's brief.

I count Attorney General Cortez Masto as one of my very first mentors, having met her at the 2008 Democratic National Convention in Denver. I am deeply disappointed that she would take the positions she has in her vigorous defense of a law that I find discriminatory and against the ideals of equality this great country was founded on. For the Attorney General to equate marriage equality with bigamy and incest is not only jaw dropping, but it is also a personal affront from someone I thought understood that we, LGBTQ Nevadans, are just the same as all other Nevadans. We work hard, send our children to school and contribute to the health of our communities. To be lumped in with bigamists and sexual criminals by a friend is, to say the very least, heartbreaking.